FCC influence wanes amid shifting landscape of entertainment media

Already one of the greatest success stories of the Internet age, YouTube appears positioned for sustainable growth well into the future.

Less than eight years removed from its 2005 inception, the video-sharing website continues to grow by leaps and bounds. Indeed, YouTube's director of content strategy recently revealed that people collectively spend 10 million more hours every day watching YouTube than they did as recently as January.

What's more, parent company Google is in the midst of spending $350 million to seed hundreds of original "YouTube channels" that showcase exclusive content. And the investment is starting to pay off, as 20 of the YouTube channels launched during 2012 already attract more than 1 million views per week.

But as Americans increasingly consider websites like YouTube as viable entertainment options, a new series of questions arises about issues such as ratings, enforcement, safeguards and free speech. Because unlike traditional television, YouTube is not subject to significant oversight from government entities like the Federal Communications Commission.

However, one of the FCC's primary enforcement mechanisms — the ability to levy fines — has been weakened in recent years. In June 2012, for example, the U.S. Supreme Court handed down a pair of decisions that effectively ended years of litigation centering on FCC fines. In one case, the high court ruled the FCC could not impose financial penalties against Fox for profanities uttered during the 2002 and 2003 Billboard Music Awards, or ABC for nudity during a 2003 episode of "NYPD Blue." The other decision invalidated a $550,000 fine against CBS for Janet Jackson's infamous "wardrobe malfunction" during the 2004 Super Bowl halftime show.

Those Supreme Court decisions essentially amnestied broadcast networks from financial liability because the FCC rules in place when the incidents occurred were overly vague. Although the FCC revamped its rules in 2004 after the Super Bowl imbroglio to include greater specificity, the Supreme Court's 2012 decisions did not clarify the issue of whether any FCC fine for indecency or profanity could be considered a violation of First Amendment free speech protections.

Ineffective gateway

With the proliferation of online video streaming that occurs beyond the scope of the FCC's jurisdiction, the commission's influence is undoubtedly waning. Yet in its place market forces have led major websites like YouTube to enforce standards of their own — even if those standards are often more relaxed, inconsistent or easy to circumvent.

Although YouTube does have a set of community guidelines that forbids videos showing pornography, gratuitous violence and "bad stuff like animal abuse, drug abuse, under-age drinking and smoking, or bomb making," many videos with squirm-inducing content simply remain on the site with the advisory, "This video has been age-restricted based."

But any motivated 12-year-old could circumvent the age restriction by simply creating a fake Google profile with an adult birth date.

"To the extent that (YouTube) has any kind of content advisories or blocks or filters or anything like that to make it harder for kids to access the adult content, all they do is ask you to say, 'I am over 18 years old,'" said Parents Television Council communications director Melissa Henson. "And then you have free rein to watch even the adult content, so it's really not an effective gateway for kids."

Censorship or free speech?

When armed terrorists killed four Americans on Sept. 11 at the U.S. consulate in Benghazi, Libya, many political pundits feared an anti-Islamic video on YouTube sparked the attacks.

Google/YouTube immediately blocked the video from Egypt and Libya, and subsequently pulled the video from five other countries where it violated local laws. But even though consensus opinion branded the video as patently offensive, it remained online everywhere else in the world.

"The company pointed to its internal edicts to explain why it rebuffed calls to take down the video altogether," Somini Sengupta wrote in a New York Times news analysis article. "It did not meet its definition of hate speech, YouTube said, and so it allowed the video to stay up on the Web. It didn’t say very much more."

In another article about the same anti-Islamic video Sengupta deemed Google to be one of the Internet companies that "write their own edicts about what kind of expression is allowed, things as diverse as pointed political criticism, nudity and notions as murky as hate speech" and "set (their) own rules, capriciously sometimes and without the due process that binds most countries."

Unlike entities such as Google that self-regulate the broadcast of online video content, the FCC adheres to a certain level of transparency by being "barred by law from trying to prevent the broadcast of any point of view," according to its own website.

Jamshid Ghazi Askar is a graduate of BYU's J. Reuben Clark Law School and member of the Utah State Bar. Contact him at jaskar@desnews.com or 801-236-6051.